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Safeguard Magazine

From the Courts


In considering a charge against a principal the judge has taken the unorthodox step of formulating his own theory about what caused a telehandler incident in which one man died and another was seriously injured.

The incident occurred at Makara, near Wellington, in 2011 when a telehandler with two men in a cage overturned and fell down a slope. The men were employed by Electrix and the telehandler had been supplied by NZ Access Hire, a subsidiary of NZ Crane Group. Both companies had been contracted by the project’s principal, Transfield Services (NZ) Ltd.

All three parties were charged by the then Department of Labour. Electrix and NZ Crane Group pleaded guilty and sentencing is expected shortly. Transfield defended a section 18 charge that, as principal, it had failed to take all practicable steps to ensure that employees of its contractor, Electrix, were not harmed.

After two hearings in October and November 2012, and a lengthy delay while technical matters were considered, Judge T J Broadmore dismissed the charge against Transfield, finding that the regulator had failed to prove the company had not taken the three practicable steps it suggested were open to it (Wellington DC, 11 September 2013).

The incident occurred during a major upgrade of the land-based elements of the Cook Strait power cable, which required the construction of a temporary 240kV bypass line in hilly terrain around Makara near the coast. The telehandler had been used without incident for three or four days at different pole sites. On 2 June 2011 the machine toppled over while the two men were suspended at a height of about 12.4m, while the boom was being “luffed” back. It landed on its side a short distance down the slope.

The DoL alleged there were three practicable steps Transfield could have taken to prevent the incident, namely to have ensured that:

  • • 
    it had relevant information about the telehandler’s capacity to operate up to certain slope limits;
  • • 
    it ensured the telehandler was used within its slope limits; and
  • • 
    the operator was adequately trained in the telehandler’s use.

On the third point, Electrix’s four-man team at the site included a team leader, a telehandler operator, Edwards, and the two men in the cage at the end of the telehandler’s extendable boom. Edwards was an experienced operator of elevated work platforms and forkhoists. A supervisor from Transfield had trained Edwards in the use of the telehandler and had remained on site for the whole of the first day to satisfy himself that it was being correctly used. Edwards also had a copy of the machine’s manual and had read it. The judge concluded he was adequately trained.

However the key reason for the dismissal was the DoL’s failure to prove the telehandler was operating beyond its slope design limits at the time of the incident. Instead, Judge Broadmore criticised the presentation of critical stability information in the manual supplied by the telehandler’s French manufacturer, Manitou, and the absence of adequate warning about the effect of wind on the machine’s stability.

The manual and an associated data sheet included information about levelling the machine when it was operated on a transverse slope, which it specified could not exceed nine degrees. A spirit level in the cabin and the use of the front stabilisers allowed the operator to establish the machine was level before operations began. However there was nothing in the manual to point out that, given the geometry of the two front stabilisers and the movable pivot point at the rear axle, if the centre of gravity of the loaded device fell outside this triangle it would tip over. And, particularly, if the nine degree slope limit was exceeded at the rear of the machine, the wheel on the lower side of the slope would be partially unweighted – meaning the apex of the triangle wasn’t the centre of the rear axle, but the higher wheel. Even if the slope at the rear was within the nine degree limit, the pivot point could shift along the rear axle depending on the dynamics of the load at any moment. This possibility was not canvassed in the manual.

The 2007 edition of the manual carried only a generic warning not to operate if the wind would jeopardise the stability of the telehandler. Later editions – not available to the operator on the day – state explicitly that the device must not be used in winds above 45 km/h.

The wind speed at the time, recorded by Meridian Energy at its Makara wind farm, was between 36 and 40 km/h. However these figures were recorded at elevations of 27m and 63m above sea level, whereas the incident occurred at an elevation of 442m where wind speeds are typically higher.

The judge concluded the DoL had failed to establish the transverse slope exceeded nine degrees, and was more likely to have been less than that given the data from a post-incident survey. Instead, he theorised that the machine toppled because of the wind, and because at the time the boom was being “luffed” backwards, shifting the centre of gravity to the rear – a less stable position given the movable nature of the apex of the triangle.

On the more general duties of a principal, Judge Broadmore found Transfield could reasonably have relied on the expertise of Electrix and NZ Crane Group as its specialist contractors.


GOODMAN FIELDER was fined $32,500 and ordered to pay reparation of $8000 after an employee at its Ernest Adams plant lost four fingers and had his hand degloved in an unguarded machine. The machine was running at the time and he had lifted a loading hopper to clean dough in preparation for a batch of dough of a different colour. There was no standard procedure for the process. The company had already paid him $47,000 (Palmerston North DC, 24 November 2013).

RIVERLANDS ELTHAM LTD was fined $42,500 under s6 of the HSE Act and ordered to pay reparation of $12,500 after an employee lost the end of his right index finger in an unguarded conveyor which lacked a start warning system and an accessible emergency stop button (New Plymouth DC, 5 December 2013).

COMPLETE LOGGING LTD was fined $60,000 and ordered to pay reparation of $75,000 after an employee was struck and killed by a tree felled by another crew member. The company hadn’t issued a work plan for the day nor held a tailgate meeting to discuss it, and the victim was not supplied with a radio to communicate with other crew members (Rotorua DC, 14 January 2014).

GREENWAY DEVELOPMENTS LTD was fined $25,000 and ordered to pay $5000 in reparation after a contractor fell from the roof of a garage under construction, fracturing his jaw and left wrist. He was helping secure a truss to the top plate of the garage when he slipped and fell three metres to a concrete floor. There was no means of fall protection in place (Tauranga DC, 30 January 2014).

R&S DREAVER SHELTER TRIMMERS LTD was fined $52,500 – reduced to $25,000 based on the company’s financial circumstances – and ordered to pay reparation of $55,000 after an employee suffered fatal head injuries when a dead tree he was helping bring down fell apart. He had made chainsaw cuts into the tree and then retreated to a safety zone so that a colleague could use a grappling hook and excavator to bring the tree down. He then moved towards the tree and was struck by debris. He had only been on the job for six days and had never worked in tree felling. He was inadequately supervised and the hazards of the job had not been properly managed (New Plymouth DC, 14 February 2014).

TREE ADVENTURES LTD was fined $24,500 and ordered to pay reparation of $80,000 after a customer on its high-rope activity courses fell 13.5m to his death. A pulley he had incorrectly put in place detached from a wire, causing him to fall from a “surfboard” that he was using to travel between two platforms. Relying on only a single attachment point left customers vulnerable to a simple mistake. The company was aware of the practice of using two attachment points – a carabiner and a lanyard – rather than just one, and had been planning to adopt it (Waitakere DC, 21 February 2014).

HOLDEN FARMS LTD was fined $28,125 and ordered to pay reparation of $75,000 after a farm hand was killed when his quad bike rolled on top of him while he was riding up a steep slope mustering cattle. The area had been identified as a hazard but the company had not told its staff not to ride quad bikes there. The bike was also carrying 20 litres of liquid in a sprayer, which could have affected its stability (Tokoroa District Court, 11 March 2014).

Thomson Reuters

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